UK - House of Lords, 6 July 2000, Horvath v. Secretary of State for the Home Department [2000] UKHL 37

Country of Decision:
Country of Applicant:
Date of Decision:
06-07-2000
Citation:
[2000] UKHL 37
Additional Citation:
[2000] 3 WLR 379, [2000] Imm AR 552, [2001] 1 AC 489, [2000] INLR 239, [2000] 3 All ER 577, [2001] AC 489
Court Name:
House of Lords
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Headnote: 

In cases where the applicant fears persecution from non-state actors, the home state can be judged to provide protection if it has in place a system of domestic protection machinery for the detection, prosecution and punishment of such acts, and has an ability and readiness to operate the machinery.  Where the line is drawn will depend on the facts of the case.

Facts: 

The applicant was a Slovak national and a member of the Roma minority. He and his family had faced racially motivated ill treatment by skinheads. The same was true of other Roma in his neighbourhood. He came to the UK and claimed asylum.

Decision & Reasoning: 

All five judges dismissed the appeal on the basis that the applicant was able to obtain state protection from the non-state actors who had ill-treated him.

It was held that one of the purposes of the Refugee Convention is to provide surrogate protection to those in fear of harm in their own country. Where the fear is of non-state actors the ability of the refugee's own state to provide protection is crucial and if such protection is not available then there is an obligation on a receiving state to provide surrogate protection. In endeavouring to define what level of state protection is appropriate when the applicant’s fear arises from non-state actors, a number of different formulae were put forward.  Lord Hope held that:

“The primary duty to provide the protection lies with the home state. It is its duty to establish and to operate a system of protection against the persecution of its own nationals. If that system is lacking the protection of the international community is available as a substitute. But the application of the surrogacy principle rests upon the assumption that, just as the substitute cannot achieve complete protection against isolated and random attacks, so also complete protection against such attacks is not to be expected of the home state. The standard to be applied is therefore not that which would eliminate all risk and would thus amount to a guarantee of protection in the home state. Rather it is a practical standard, which takes proper account of the duty which the state owes to all its own nationals.” 

Lord Clyde held that:

“There must be in place a system of domestic protection and machinery for the detection, prosecution and punishment of actings contrary to the purposes which the Convention requires to have protected. More importantly there must be an ability and a readiness to operate that machinery. But precisely where the  line is drawn beyond that generality is necessarily a matter of the circumstances of each particular case.”

Finally, Lord Lloyd of Berwick gave a more succinct definition, holding that the sufficiency of state protection should be measured by “the availability of a system for the protection of the citizen and a reasonable willingness by the state to operate it”.

Outcome: 

The appeal was dismissed.

Observations/Comments: 

 

This case was decided by the House of Lords in the year 2000.  It remains the leading authority in the UK on state protection.  It provides guidance on assessing cases in which the applicant fears persecution from non-state actors and, in such cases, on the level of protection a state should afford its citizens against such persecution.  It is therefore relevant in the approach that the UK courts take to Articles 6 and 7 of the Qualification Directive

The applicability of the test set out in Horvath to protection against removal under Article 3 of the ECHR to face ill treatment by non-state actors was considered by the House of Lords in Bagdanavicius & Anor, R (on the application of) v [2005] UKHL 38 (see separate summary).

Other sources cited: 

Charter of the United Nations and the Universal Declaration of Human Rights

Joint Position defined by the Council of the European Union on 4 March 1996 (OJ 1996 L63/2)

Goodwin-Gill, G. (The Refugee in International Law, 2nd ed. (1996), Hathaway, J. The Law of Refugee Status (Butterworths, 1991)

Geoffrey S. Gilbert, Right of Asylum: A Change of Direction, International and Comparative Law Quarterly, Vol. 32, 633

Case Law Cited: 

UK - R v Secretary of State for the Home Department Ex p Sivakumaran (and conjoined appeals) [1988] AC 958

UK - R v Home Secretary ex p. Adan (CA) [1999] 3 WLR 1274; [1999] EWCA Civ 1948

UK - Ravichandran v Secretary of State for the Home Department [1996] Imm AR 97

UK - Karanakaran v Secretary of State for the Home Department [2000] EWCA Civ 11

Demirkaya v. Secretary of State for the Home Department [1999] I.N.L.R. 441

UK - Sandralingham v. Secretary of State for the Home Department [1996] Imm. A.R. 97

UK - R v Immigration Appeal Tribunal, ex p Jonah [1985] Imm AR 7

Australia - Damouni v. Minister for Immigration, Local Government and Ethnic Affairs (1989) 87 ALR 97

Australia - Chan Yee Kin v. Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

Australia - Damouni v. Minister for Immigration, Local Government and Ethnic Affairs (1989) 87 ALR 97